The unanimous opinion held that employers need only “provide” a 30-minute, duty free, meal period after five hours of work (and a second after 10 hours) rather than “ensure” that the meal break is taken. Significantly, the court declined to follow the Labor Commissioner’s opinion letter on this point. This is very good news for employers. The case dramatically reduces the potential liability for alleged meal period violations and will make it much more difficult to certify class actions in meal period cases. See, e.g.,Benton v. Tanintco, Los Angeles Superior Court Case Number BC349267.

In a more sobering portion of the Brinker opinion, the court held that employers must provide a 10-minute rest period for every four hours of work “or major fraction thereof” (more than two hours). If employers’ written policies do not comply with the “major fraction” concept (and many do not) class certification will be proper. This is not good news.

Finally, the court articulated what is likely to become the next battleground in these cases, i.e., whether the employer somehow engages in systematic behavior that discourages the taking of breaks. The court warned that “an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.” The court then went on to cite several cases in which either the tasks assigned to employees, the scheduling practices, or the existence of informal anti-break pressure, interfered with the employee taking their meal break. Cicairos v. Summit Logistics, Inc., 133 Cal.App.4th 949, 962-963 (2005) (employer regulated drivers’ time by requiring them to track and record road conditions); Jaimez v. Daiohs USA, Inc., 181 Cal.App.4th 1286, 1304-1305 (2010) (common delivery scheduling policy made it difficult for employees to complete their assigned tasks in order to take meal break); Dilts v. Penske Logistics, LLC, 267 F.R.D. 625, 638 (S.D. Cal. 2010) (an informal anti-break policy was enforced through ridicule and reprimand). The court stated that employers may not coerce against the taking of, create incentives to forego, or otherwise encourage the skipping of legally protected meal periods. This language leaves open a lot of possibilities regarding potential employer liability. The court stated, “[w]hat will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of possibilities.”

At this time, employers should evaluate their:

Meal break policies for compliance with the Brinker opinion;

Timekeeping practices to ensure recording of start and end times of meal breaks; and